Welsh Liberal Democrat Assembly Member for South Wales West - Visit my main website at www.peterblack.wales

Thursday, February 17, 2011

Two referendums and an election

This is a slightly truncated article, which I wrote for the Lib Dem magazine Liberator:

Personally, I blame Harold Wilson. Until he decided to hold a post-legislative referendum on membership of the European Union in 1975 referendums were not part of the British tradition.

The exception was of course Wales, which following the repeal of Gladstone’s 1881 Sunday Closing (Wales) Act in 1961 saw a number of plebiscites on a County by County basis over the controversial issue of Sunday drinking. It took 35 years of going to the polls before all areas of Wales allowed their public houses to open on a Sunday.

Since Harold Wilson’s intervention we have had a number of other votes: in 1979 to decide on devolution proposals in Wales and Scotland and again in 1997 to have a second go at similar, though much watered-down proposals.

Although both of these referendums produced positive outcomes, the legislative bodies that emerged were not equal in their responsibilities and powers. Scotland was given a Parliament that could pass laws and vary taxes. In Wales we were offered the administration of the £7 billion budget previously held by the Welsh Office and the opportunity to pass secondary legislation, effectively to tinker with the UK agenda and UK Acts of Parliament.

In my view the uneven nature of the powers offered to Wales and Scotland was one of the reasons why the result here was so close. It initiated a debate that has dominated Welsh politics ever since.

How we got where we are lies in the politics behind why referendums are held in the first place. As Harold Wilson and then Jim Callaghan illustrated, the abandonment of representative politics in favour of a popular vote on specific legislative proposals happens when the ruling party cannot agree amongst itself or fears that the issue will rip apart their political unity. So, rather than argue it out in Parliament or party conference they agree to let the people resolve the issue for them.

In the case of the Welsh referendum it got even more complicated. That is because the Labour Party in Wales could not agree on the question. As a result the proposals put before the Welsh people were significantly watered down.

These internal Labour politics also limited the terms of the debate on how this could be put right. A Commission set up by the Labour-Liberal Democrat Coalition Government in 2000-2003 recommended that Wales should have the same law-making powers as Scotland; however that was not acceptable to Labour MPs and the wider party in Wales.

As a result when the Government of Wales Act 2006 was passed it contained a bizarre mechanism by which the Assembly draws down primary law-making powers as and when it needed them. The precise method by which this occurs is through a legislative competence order (LCO).

Essentially, the Welsh Assembly draws up a statutory instrument defining what powers it wants to exercise. These orders are then scrutinised by an Assembly Committee and by the Welsh Affairs Committee in Westminster to ensure that they are fit for purpose; they are passed around Whitehall departments to consider any unseen consequences and then laid before the two Houses of Parliament before going for royal consent. The total cost of this process is about £2 million a year out of the Assembly’s budget, on top of the time taken by AMs and MPs in scrutinising the orders.

The total time taken from start to finish for a non-controversial LCO is about 4 to 6 months. Despite all that time and effort not a single new law will have been entered on the statute book once the process is complete. That requires an Assembly measure, our equivalent to an Act of Parliament, which will utilise the powers drawn down to change the law.

The inherent problem with the LCO process lies in the fact that an elected Assembly needs to ask permission of another body before it can implement the manifestos of its ruling parties. However, there are wider problems too, when politics are brought to bear to frustrate the will of Assembly Members.

The classic example of this was the Assembly’s attempt to legislate to temporarily suspend the right to buy in areas of high housing demand. This had been in the manifestos of three of the four parties represented in the Assembly, together making up 47 of the 60 AMs. Despite that, when the order got to Parliament, MPs protested and as a result the Secretary of State for Wales built a caveat into it that would have required further consent from UK Government Ministers before the power could be exercised.

Not surprisingly, the Joint Constitutional Committee of the House of Lords and House of Commons found this to be ultra vires and the LCO was withdrawn. A new LCO was introduced seeking wider powers over affordable housing but this was also held up, due to being caught up in the wash-up before the 2010 General Election. Labour would not push it through and the Tories would not agree to its passage.

It was only recovered due to an explicit reference being made to it in the Coalition Agreement and because attempts by Tory Ministers in the Wales Office to water it down were overruled by those overseeing that agreement following an intervention by Welsh Liberal Democrats.

The Welsh Assembly now has the power to legislate on affordable housing. However, it has taken three years to get to this stage and there is little time to do anything with it before the next set of elections. This is no way to run a legislature.

It is not just the acquisition of housing powers that have been sabotaged by external intervention. A request to legislate on the Welsh Language had so many caveats and conditions built into the final order that it severely limited the room for manoeuvre available to the Government. We were also denied key powers on the environment.

This is not just a matter of a legislative body being frustrated in its ambitions but also that Welsh law itself is being made remarkably complex and confusing by a whole list of exemptions and restrictions being imposed on its powers by the UK Government. It is not a sustainable position.

The 2006 Act contained a provision that this wasteful and time-consuming process could be done away with following a referendum. However, a ‘yes’ vote will not put the Welsh Assembly on a par with the Scottish Parliament. We will be restricted to passing laws only in the 20 policy fields specified in the Act. These are the same fields that we can ask permission to legislate on now.

In fact, a positive outcome will not confer any additional powers on the Assembly at all. It will merely dismantle the LCO process, a worthwhile objective in itself and one that is difficult to argue against. It is a referendum we need to win if we are to advance democracy in Wales.

Those arguing for a ‘no’ vote have been reduced to flying political kites. They say that if we win the referendum then Wales will be on a slippery slope to tax varying powers, a full Parliament and ultimately independence. None of these are on the ballot paper and nor do they command majority support across the political parties.

The No campaign’s argument therefore is fallacious.

The other controversy that has dogged the referendum is the date it is being held on. Choosing a date is a familiar problem for those legislating for the AV referendum. In this case there was an argument to hold the two referendums and the Assembly election on the same day, the problem with that was one of accountability.

It is only right that when people make their choice as to who is going to run Wales for the next four years that they know what powers they are able to exercise and whether the manifestos they are being asked to choose between are deliverable or not.

Campaigning is underway, but there are no official Yes and No campaigns. That is because the Electoral Commission set a representative test for each, which those opposed to the extension of powers felt they could not meet. True Wales, as they are called, thus took a tactical decision not to register and to run a ‘grassroots campaign’ instead. As a result neither side receives the £70,000 of public funding for administration costs, nor the ability to send a freepost leaflet to every voter.

All four parties have lined up behind a ‘yes’ vote, even those Tory Assembly Members who campaigned against the establishment of the Assembly in 1997 in the first place. However, it seems three of the eight Tory MPs will be voting ‘no’, though so far they have not been actively campaigning in that direction. I suspect that some Labour MPs will be joining them but again, they have hardly been vocal on their preference. The Government will stay officially neutral, though it would be nice if the odd Liberal Democrat Minister could find it within themselves to come and help out on the ‘yes’ side.

The latest opinion poll indicates that a ‘yes’ vote will be the likely outcome. Yes voters number about 49% of those asked, with 26% voting no and 26% undecided. The key though will lie in turnout, not just differential turnout but in how many people bother to make the trip to the polls in the first place.

Back in 1997, the majority was narrow but the turnout was also low. As a result people still question the legitimacy of an Assembly which secured only 26% of those eligible to vote. Decisions are made by those who take part of course, but it helps if those who do take part are more numerous than those who abstain.

The campaigning does not stop on 3rd March. Immediately afterwards there is the Assembly election itself and, providing the House of Lords plays ball, the Alternative Vote referendum as well. No doubt when he set the date, Nick Clegg took into the account that our campaigning priorities in Wales may not be the same as in England.

Wales has had coalition government on and off for nearly 12 years, we know the advantages of a semi-proportional electoral system and so the country should be a natural supporter of a switch to AV at a UK level.

It may well work out that way, but on May 5th our main focus will be the outcome of the Assembly election itself and forming a government.

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